Bradley: Arizona Attorney General Deems Delta-8 and Delta-10 Controlled Substances in Controversial Opinion

Novel psychiatric cannabinoids legalized by the 2018 Farm Bill remain under attack by state regulators. Most recently, the Arizona attorney general opined that “Arizona law does not permit the sale of delta-8 and other hemp-synthesized intoxicants [including delta-10] by entities that have not been licensed by Health Services.”

The determination was based on Arizona law, “[i]rrespective of delta-8’s arguable federal legality under the 2018 Agriculture Improvement Act,” because “Arizona continues to define and regulate ‘industrial hemp’ in a manner that precludes the sale of hemp-synthesized intoxicants in convenience stores, smoke shops, and other unlicensed locales.”

The attorney general essentially concedes, without expressly concluding, that delta-8 and delta-10 products are legal under federal law pursuant to the 2018 Farm Bill.

The attorney general’s view is largely influenced by four factors: (1) legislative findings in Arizona’s 2010 Medical Marijuana Act (AMMA), which permits “those who meet statutory conditions to use medical marijuana;” (2) the distinction between “industrial hemp,” which is legal under Arizona, and the broader definition of “hemp” in the 2018 Farm Bill which was passed after Arizona legalized “industrial hemp;” (3) Arizona’s prohibition of virtually all hemp-derived products made to be ingested; and (4) public safety concerns with unregulated delta-8 and delta-10 products.

Seemingly most important to the attorney general’s determination is that Arizona law expressly “excludes any product made to be ingested except food made from sterile hemp seed or hemp seed oil.”

The attorney general concluded with an additional note of caution:

The Opinion, however, should not be construed as a general endorsement of the sale of hemp-synthesized intoxicants by licensed cannabis sellers. As is noted above, these products may pose public health concerns and information about these products is still emerging. Delta-8 is subject to Health Services’ regulatory oversight, and future regulatory decisions will necessarily be guided by evolving public health and safety information concerning this product class, as well as by particularized information regarding specific intoxicating hemp products and manufacturers.

The attorney general’s determination will certainly be welcomed by the marijuana industry in Arizona that can now avoid perceived competition from delta-8 and delta-10 suppliers – which importantly are not subject to the same regulation and taxation as marijuana suppliers. In true “code of the West” form, if anyone is going to be getting anyone high around these parts, it’s going to be us.

In my view, the attorney general got it right with respect to ingestible products, but the opinion is not entirely convincing. I actually disagree with most of the textual and policy arguments offered by the attorney general, but the prohibition of any hemp product “made to be ingested” certainly appears to support the attorney general’s prohibition with respect to consumable hemp products.

Finally, the opinion is subject to being overturned should the Arizona Legislature wish to permit delta-8, delta-10, and other hemp-derived products legal outside of the Arizona marijuana program. As always, your friends at Budding Trends will monitor any developments in the law.

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